I’ve written before about the possibility that a properly written clickwrap or browsewrap arbitration agreement could help tame the ADA litigation monster, which like the Hydra seems to grow two new heads for each one that is cut off. A new decision from the United States District Court in Illinois, Miracle-Pond, et al. v. Shutterfly, Inc., No. 19-CV-4722, 2020 WL 2513099 (N.D. Ill. May 15, 2020) confirms that except in cases involving California consumers* a clickwrap or browsewrap type agreement can indeed force a lawsuit to arbitration provided it is properly written and presented to the user.

In Miracle-Pond the plaintiff opened a Shutterfly account when the Terms and Conditions included a class-action waiver and a provision permitting unilateral amendments to those Terms. Later an arbitration provision was added. That provision remained in place when the lawsuit – which claimed Shutterfly improperly used biometric information – was filed. Then, three months after the lawsuit was filed, Shutterfly sent all its account holders an email notice that listed a number of changes to the Terms and Conditions and included a reference to the arbitration provision. The email declared that leaving an account open would constitute assent to the new Terms and Conditions.

The Court first found that the agreement was a clickwrap rather than a browsewrap agreement because it required explicit consent. This distinction is important because browsewrap agreements are harder to enforce. They require actual or constructive knowledge of the terms and conditions. In Miracle-Pond the plaintiff was using a mobile app. that required a click to use the software, making it somewhat easier to show assent to the arbitration clause.** Since she clicked, her assent was clear. Website operators need to consider how to force users to acknowledge the existence of terms and conditions before they begin to use the website; something that should be easier as businesses adapt to consumer laws that require notice of how cookies are used.

The Court next found that based on Illinois state law¹ Shutterfly’s unilateral addition of an arbitration provision was enforceable. This was true even without the post-lawsuit email notice, which the Court discusses but does not rely on.

A typical ADA website lawsuit is not filed with the intent to prosecute the claims to trial, but rather to use the threat of litigation expense to make immediate settlement the only business-like response. That is why plaintiffs’ firms ask for amounts that are clearly absurd in terms of work performed but slightly less than the cost of any likely defense. The only way to eliminate this leverage is to move the lawsuit from federal court to arbitration, where a defense can be mounted at a reasonable cost and the plaintiff’s lawyers forced to go beyond mere allegations to actual proof – an expense many are not prepared to incur. Unlike a motion to dismiss based on a lack of standing or a claim concerning the ADA’s application to the internet that is almost certain to fail, a motion to compel arbitration has a reasonable chance of success if the arbitration provision is properly drafted and, most important, properly presented to the user. Miracle-Pond and similar cases confirm that click-wrap or browse-wrap agreements could tame the ADA litigation monster, and no website or mobile app operator should fail to act to take advantage of this fact.²

** Those interested in how to create an enforceable browsewrap arbitration agreement for ADA website lawsuits can refer to my earlier blog “Browsewrap could tame the ADA website litigation monster.” I advise all of my clients to include a properly formatted browsewrap arbitration agreement for website accessibility claims in their Terms and Conditions.

¹ Arbitration agreements and their enforcement are generally a matter of state law, even when federal claims are involved. Although most ADA website lawsuits are filed in California, New York and Florida, choice of law principles may require that the law of another state be followed, so website operators need to consider their own state’s laws in structuring these agreements.

² The good news doesn’t mean you can simply slap an arbitration agreement in your terms and conditions. Careful thought has to be given to the relevant choice of law principles as noted above. In addition local consumer protection laws need to be considered; it may be desirable to have a narrow arbitration provision in order to avoid triggering application of one of those laws. Most important, the terms and conditions must be properly presented to the user.

Website developers and even remediation experts have reason to be concerned about a recent decision from California. In Bashin v. Conduent, Inc., Case No. RG18888208 in the Superior Court for Alemeda County, Judge Brad Seligman refused to dismiss ADA claims against the developer of a website for the State of California Department of Public Works and Recreation. Each part of the decision identifies a real risk that every website developer needs to be aware of. More

This is going to be an unusual blog because most of it will be in a footnote of sorts. The legal part of the blog is easy. If your business wants to avoid getting sued under the ADA because of an inaccessible website an accessibility overlay or widget isn’t going to help you. I can say this with some certainty because in the last two weeks alone five lawsuits have been filed against businesses that use an accessibility widget or overlay on their websites.* I also know why this is the case. The law firms who file website accessibility lawsuits and their pet clients start the process of finding a target using automated tools that scan for compliance with the technical requirements of the Web Content Accessibility Guidelines 2.0 or 2.1. I have used those tools on websites using an overlay or widget and they almost always flag errors of some kind. There is a lot a dispute about the effectiveness of these scanning tools, but effective or not getting flagged by one of them is an invitation to a lawsuit. If a widget doesn’t fix the errors plaintiff’s lawyers can find using automated tools it won’t prevent a lawsuit. The conclusion is simple. If avoiding litigation is your goal an overlay or widget won’t do the trick. More

I was in the midst of preparing a presentation on ADA website obligations for the Texas Mortgage Bankers Association when I got an email from Jason Richmond of Anttix, Inc., a website design and accessibility consultant. He asked me to clarify, for the benefit of some of his clients, whether the ADA applied to the websites of businesses with fewer than 15 employees. The short answer is: yes, it does. It isn’t surprising though that many businesses and even lawyers are confused about this.

Two different parts of the ADA, Titles I and III, apply to most private businesses. Title I applies to businesses as employers and deals with the rights of disabled employees. Title III applies to businesses that are open to the public and deals with the rights of disabled members of the public. Therein lies the confusion.

Title I only applies to businesses with 15 or more employees. Here’s the statutory tracking for the relevant parts of Title I:

42 U.S.C. §12181(7) defines a “public accommodation” as any business that falls into one of ten categories of business that typically deal with the public. There is no mention of the number of employees.

Thus, Title III covers any business open to the public, no matter how few employees it has.

An additional source of confusion comes from the fact that not all businesses are public accommodations. A factory, for example, is not usually a public accommodation because it isn’t open to the public. If a factory has 15 or more employees it must to comply with Title I, but if it doesn’t sell to the public it probably does not have any obligation to comply with Title III.

That “probably” can also be a source of confusion. Many courts say that every website that can be accessed by the public is a public accommodation covered by Title III of the ADA. A factory that has no store open to the public might still be covered by Title III if it has a website open to the public. Not all courts agree and the law is developing rapidly, but the safest bet for any business with a website is to treat the website as a public accommodation that must be accessible to those with disabilities under Title III of the ADA.

So, whether a business has only one employee or a thousand, if it is open to the public either in a building or on the internet it is probably covered by Title III of the ADA, and that means it needs an accessible website unless it has a lot of spare cash and a taste for protracted litigation.*

* In which case please call me – I’d love to carry on the fight for you.

Happy Valentine’s Day. The last few weeks have brought the usual assortment of cases, some of more interest than others. I’ll lead with a personal jurisdiction case that has the potential to be important for website accessibility lawsuits.

ADA Website Litigation – an important personal jurisdiction case.

Mercer v. Rampart Hotel Ventures, LLC, 2020 WL 236843 (S.D.N.Y. Jan. 16, 2020) presents a familiar fact pattern. The disabled plaintiff purportedly visited the hotel website for a hotel in Louisiana. She was unable to find information about accessible rooms and therefore exited without trying to book a room. She then sued based on a violation of the ADA, whose regulations require such information, and under New York Law. The Court’s discussion of long arm jurisdiction should be immensely helpful to out-of-state defendants in website cases. The Court first rejected long arm jurisdiction based on a transaction between the plaintiff and defendant because defendant never tried to book a room. It then rejected an argument that other transactions between the hotel and citizens of New York were relevant, finding they were unconnected to the plaintiff’s claims. The next round of briefing in this case will be crucial, for the plaintiff was granted leave to amend to add a claim for personal jurisdiction based on the commission of tortious acts in New York. Courts commonly analogize ADA Title III claims when choosing a statute of limitations: “because most discrimination claims involve “injury to the individual rights of a person” and are analogous to personal injury tort claims. Meriwether v. ABC Training/Safety Council Texas Gulf Coast Chapter, 2016 WL 8711726, at *2 (N.D. Tex. Oct. 24, 2016), report and recommendation adopted, 2016 WL 8711279 (N.D. Tex. Nov. 18, 2016), but to say an ADA claim is analogous to a tort is not the same as saying it is a tort. Indeed, if it were, ADA violations could give rise to a state law action in tort. If the court rejects that notion that an ADA violation constitutes “tortious conduct” under the New York Long Arm Statute it may well become impossible for serial plaintiffs to fuel the ADA litigation machine with casual visits to websites of out-of-state hotels and other businesses.

Richard M. Hunt

I defend businesses nationwide in ADA and FHA accessibility lawsuits and consult with businesses and other attorneys concerning how to promptly and effectively deal with ADA and FHA demands, minimize litigation risk, and obtain meaningful compliance with the ADA and FHA. For more information about this feel free to email me at rhunt@hunthuey.com or visit our firm web site, hunthuey.com